Missouri, K. & T. Ry. Co. of Texas v. Poole

• Decision Date: 11 December 1909
• Citation: 123 S.W. 1176
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. POOLE.
• Court: Texas Court of Appeals

123 S.W. 1176

MISSOURI, K. & T. RY. CO. OF TEXAS v. POOLE.

Court of Civil Appeals of Texas.

December 11, 1909.

Rehearing Denied January 1, 1910.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by J. F. Poole against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed.

Coke, Miller & Coke and Head, Dillard, Smith & Head, for appellant. Wolfe, Hare & Maxey, for appellee.

TALBOT, J.

Appellee brought this suit against appellant to recover damages for personal injuries received by him in the derailment of an engine and train upon which he was at work for appellant. The defenses relied on were the negligence of a fellow servant in running the train at too high a rate of speed, and the assumption of risk by appellee on account of notice that the railroad track was new and rough. A jury trial resulted in a verdict and judgment in favor of appellee for the sum of $5,750, and appellant appealed.

The evidence warrants the following conclusions of fact: On the 8th day of August, 1907, appellee was in the employ of appellant as a locomotive fireman, and on said date, while at work as such fireman upon a work train a short distance south of Durant, Ind. T., now the state of Oklahoma, a derailment of a portion of said train and the engine propelling it occurred, and the appellee seriously and permanently injured thereby. A. K. Hunt was the conductor of the train, and J. F. Mann was the engineer in charge of the engine. At the time the wreck occurred the engine was running backwards, with the tender in front, and drawing the cars attached thereto after it. The railroad track over which the train was passing at the time the accident happened was new and rough, with several soft places and sags in it, and one unusual depression, described by the witness as a "big sag," which in his opinion caused the wreck, and the conductor and engineer in charge of said train had orders from appellant to reduce the speed thereof to 10 miles per hour while being run over said track. The testimony as to the speed of the train when derailed varies. Some of the witnesses say it was running about, and not exceeding, 10 miles an hour, while others say it was being run at from 25 to 30 miles per hour. Appellee by having formerly passed over the track on his engine in the discharge of his duties as fireman knew the same was new, irregular, and rough, and that there were such sags and soft places in it as are ordinarily found in a new track, but he had no knowledge of the unusually soft and deep depression referred to by the witness as the "big sag," or of any other sag or depression in the track, nor did he know that it was dangerous to run the train over the track at a speed of 10 miles an hour. The derailment of the engine and consequent injury to appellee was due, as the proximate result thereof, to the negligence of appellant in permitting the unusual depression or sag to be and remain in its track, and not to the usual and ordinary irregularities in a new track, or to the combined or concurring negligence in having the said unusual depression in the track, and the operation of the train by the engineer at too rapid rate of speed, or to the operation of the train by appellee's fellow servant, the engineer, at a rate of speed exceeding 10 miles per hour alone, or to the operation of the train with the tender in front of the engine and the concurring negligence of the unusual condition of the track. Appellee did not assume the risk of the danger that caused the wreck and sustained damages by reason thereof in the amount awarded by the verdict of the jury.

The propositions under the first assignment of error are: (1) "The allegations of plaintiff's petition were not sufficient to authorize the submission to the jury of the issue of negligence on the part of defendant in directing its trains to be run over the track at as great rate of speed as ten miles per hour." (2) "The evidence was not sufficient to authorize the submission to the jury of the issue as to the wreck being caused by negligence on the part of the defendant in directing the train to be run as fast as ten miles per hour." Neither of these propositions can be maintained under the record. The petition alleged, in so far as is pertinent to the question, "that the plaintiff's injuries were brought about by the negligence of the defendant * * * in the manner and way that the engine, tender, and cars were being operated that the track over which said train was being propelled was not being properly ballasted. The rails and ties were not suitable for the purpose for which they were being used. The roadbed had not been properly laid and ballasted, and that all these defects separately and jointly caused said train to be wrecked and the engine to be derailed." The court charged the jury as follows: "If you believe from the evidence that on the occasion in question the said train upon which plaintiff was working as fireman was being operated at a rate of speed not in excess of 10 miles per hour, and if you further believe from the evidence that by reason of the condition of the track at said place, or by reason of the condition of the track coupled with the manner in which the engine and tender were being operated at said time, the said train or a portion thereof was caused to be derailed and plaintiff thereby injured, and if you further believe from the evidence that defendant was guilty of negligence as that term has been hereinbefore defined to you in directing its trains to be run over said track at as great a rate of speed as 10 miles per hour, and you further believe from the evidence that such negligence, if any, was the proximate cause of plaintiff's injuries * * * you will find for the plaintiff." This charge, in the absence of special exceptions, was authorized by the general allegations above quoted, and there being evidence from which the conclusion could fairly be drawn that the train at the time of the accident was being operated, at the direction and upon the orders of appellant, at a speed of only 10 miles per hour, and that by reason of the soft condition of the track and of a sag or depression in it of unusual size or deep, even for a new track, which was known to appellant and unknown to appellee, and which rendered the operation of a train over it at a speed of 10 miles per hour dangerous, the submission of the issue to the jury was required.

The second assignment complains of the court's action in refusing to instruct at appellant's request a verdict in its favor. In support of this assignment, the proposition is made that "the undisputed evidence showed that plaintiff had notice of and assumed the risks from the track in the condition it was, and that his injuries were either caused by the risk thus assumed, or by the negligence of his fellow servant in running too fast, so that in neither case would defendant be liable." The undisputed evidence in our...